9th Circuit Perry v. Schwarzenegger hearing: analysis and discussion

"(a) Cooper’s constitutional argument turned almost entirely on the
word itself- marriage- and as Brian noted in our live-blog thread, that
this word is simply special.

"(b) Very interesting and promising that Judge Hawkins seemed to ridicule Cooper’s discussion of the Romer v. Evans
case when Cooper said that case was far-reaching and different,
interjecting, if you take away a bunch of rights, it’s not okay, but if
it’s one right [marriage], then it’s ok? Cooper could not square the
circle that, to him, Amendment 2 was a noxious and over-the-top move by
the voters of Colorado, but taking away the fundamental freedom to
marry from same-sex couples is fine by him, and Hawkins seemed to note
that.

"(d) Ted Olson hammered home repeatedly, and without interruption
that the US Supreme Court has never said marriage is just between man
and woman when ruling in the context of prisoners, contraception,
divorce, other cases that marriage is (a) liberty (b) privacy (c)
association (d) identity. He noted the Supreme Court said this 14
different times. That, along with Olson’s discussion points that (a)
even if raising children in same-sex households were a problem, the
remedy is not to deny the freedom to marry to same-sex couples, and (b)
as Brian put it, you can’t wall off a right because children shouldn’t
be exposed to sexuality… it just doesn’t stand up to even the lowest
level of rational basis- seemed to be the most poignant in the entire
day.

"I will be posting further reactions from others throughout the afternoon, as well as the scene from outside the courtroom.

"What are your thoughts on how it went?

"Update: Excerpt of a statement from Freedom to Marry’s Evan Wolfson:

'Earlier this year, the anti-gay forces behind
California’s Prop 8 were yet again shown to have no evidence and no
good arguments that would stand up in the light of a courtroom, under
oath and cross-examination. Lacking any serious expert witnesses or
facts to justify marriage discrimination, they fought to block cameras
from the courtroom and actually asserted that they ‘don’t have to have
evidence.’ After Judge Walker conclusively found that they had failed
to justify stripping the freedom to marry away from California’s gay
couples, the anti-gay groups swiftly took to attacking the judge.

'Today, unable to hide, these same opponents of equality stood
before appellate judges and, this time, cameras, and all the world
could see what a majority of American people have already come to
understand: there is no good reason for continuing to exclude committed
loving couples from the legal commitment of marriage. When the gavel
came down, it was clear yet again that the anti-gay forces still have
nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic
soup made by boiling the shadow of a pigeon that starved to death.’'

... "Update 11: David Boies and Chad Griffin are now
live on Hardball. Boies makes the point that there’s no useful societal
point to banning s-s marriages. Griffin talks about 'state-sanctioned
discrimination' and how it gives license to other forms of
discrimination. Matthews asked if Boies’ argument would have been
credible in the early days of our republic. Boies responds that (a) The
bias we see today against gays and lesbians is a product of the last
100 years (b) originally, this country was 'we the white male
propety-owners'. Griffin in response to a question from Matthews says
this should not be up to a vote of the people. Matthews asks about
possibility of getting Scalia-types on this. Boies says 'we’re not
giving up on any of the justices b/c if you look at Ted and myself,
it’s hard to find two on the most opposite poles of the political
spectrum' [paraphrasing]. Griffin briefly discusses inter-racial
marriage. Matthews says thanks, they sign off. They both did very well."